R. v. T.B.L., (2003) 173 O.A.C. 159 (CA)

• Judge: Weiler, Laskin and Moldaver, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 11, 2003
• Jurisdiction: Ontario
• Citations: (2003), 173 O.A.C. 159 (CA)

R. v. T.B.L. (2003), 173 O.A.C. 159 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. MY.001

Her Majesty the Queen (respondent) v. L. (T.B.) (appellant)

(C38172)

Indexed As: R. v. T.B.L.

Ontario Court of Appeal

Weiler, Laskin and Moldaver, JJ.A.

April 11, 2003.

Summary:

The accused was convicted of two counts of indecent assault in relation to two of his step-daughters, R.M. and M.L and one count of illicit sexual intercourse with M.L. He was sentenced to 15 months for the illicit sexual intercourse offence and six months each on the two counts of indecent assault, concurrent to each other and concurrent to the 15 month sentence on the count of illicit sexual intercourse. The total sentence was therefore 15 months' imprisonment. The accused appealed the convictions and sentence and the Crown cross-appealed the sentence.

The Ontario Court of Appeal dismissed the accused's conviction and sentence appeal, but allowed the Crown's cross-appeal, holding that the sentence on the indecent assault charge involving R.M. should have been consecutive.

Criminal Law - Topic 4352.1

Procedure - Charge or directions - Jury or judge alone - Directions respecting similar fact evidence - [See second and third Criminal Law - Topic 5213 ].

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevance - Similar acts - When admissible - The accused was convicted of two counts of indecent assault in relation to two of his step-daughters and one count of illicit sexual intercourse involving one of the daughters - He appealed his convictions, arguing that the trial judge erred in leaving certain evidence to the jury as similar fact evidence - He claimed that had he been alerted to the similar fact issue before the precharge stage of the trial, he might have altered his defence strategy, by for example seeking severance or by focusing more intensely on the dissimilarities in the complainants' evidence or, alternatively, on the likelihood of collusion - The Ontario Court of Appeal refused to give effect to this ground of appeal - The court rejected the underlying premise that the Crown was obliged to give the defence notice of its intention to use the complainants' evidence as similar fact evidence - Further the court expressed doubt that even if notice had been given, whether it would have altered defence strategy - See paragraphs 5 to 11.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevance - Similar acts - When admissible - The accused was convicted of two counts of indecent assault in relation to two of his step-daughters and one count of illicit sexual intercourse involving one of the daughters - He appealed his convictions, arguing that the trial judge erred in leaving certain evidence to the jury as similar fact evidence because the limited probative value the evidence might have had was far outweighed by its prejudicial effect - The Ontario Court of Appeal rejected this ground of appeal - The court held that the trial judge correctly determined that the evidence of each complainant was capable of confirming the testimony of the other and that the potential for prejudice could be circumvented by a strong limiting instruction, which he did in his charge - The court noted that the jury was not overwhelmed by the similar fact evidence - They acquitted the accused of a second charge of indecent assault against one of the daughters - See paragraphs 12 to 14.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevance - Similar acts - When admissible - The accused was convicted of two counts of indecent assault in relation to two of his step-daughters and one count of illicit sexual intercourse involving one of the daughters - He appealed his convictions, arguing that the trial judge erred in leaving certain evidence to the jury as similar fact evidence, and in particular by failing to instruct the jury on the matter of collusion and its impact on the probity of the similar fact evidence - The Ontario Court of Appeal held that it would have been preferable had the trial judge dealt specifically with the issue of collusion in his charge - However, considering all of the circumstances, this failure did not constitute reversible error - The evidence of collusion in this case was weak - The court opined that the jury would have been alive to the issue of collusion despite the lack of a specific instruction and would have acquitted had they had a reasonable doubt that the evidence of the complaints was a product of collusion - See paragraphs 15 to 18.

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - [See Criminal Law - Topic 5856 ].

Criminal Law - Topic 5856

Sentence - Indecent assault - The accused was convicted of two counts of indecent assault in relation to two of his step-daughters, R.M. and M.L and one count of illicit sexual intercourse with M.L. - The offences were historical in nature - The accused allegedly fondled R.M.'s breasts for approximately 5 minutes - The accused allegedly pulled M.L.'s pants and underwear down and touched her vagina with his fingers for a few minutes - Subsequently the accused began having full intercourse with M.L. over the course of 10 years - The accused was sentenced to 15 months for the illicit sexual intercourse offence and six months each on the two counts of indecent assault, concurrent to each other and concurrent to the 15 month sentence - The total sentence was therefore 15 months - The accused appealed, seeking a conditional sentence and the Crown cross-appealed, seeking consecutive sentences for the indecent assault offences - The Ontario Court of Appeal dismissed the accused's appeal, but agreed with the Crown that the six months for the indecent assault charge involving R.M. should have been consecutive - See paragraphs 20 to 23.

Criminal Law - Topic 5932

Sentence - Sexual assault - [See Criminal Law - Topic 5856 ].

Evidence - Topic 1257

Relevant facts, relevance and materiality - Similar acts - To prove course of conduct -[See first Criminal Law - Topic 5213 ].

Counsel:

Robert Sheppard, for the appellant;

Karey Katzsch, for the respondent.

This appeal was heard by Weiler, Laskin and Moldaver, JJ.A., of the Ontario Court of Appeal. The following oral endorsement was released by the Court on April 11, 2003.